This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013.

There are 36 references cited in this article, which can be found at the bottom of the page.

If you and your spouse are considering a divorce, all courts require you to have a valid reason for getting one. Adultery is generally a valid reason in the eyes of a court. If you are going to claim adultery as the reason for your divorce, you are going to have to prove your claim in court. To do so, you will need to know what the law requires, what evidence to look for and retain, and how to present that evidence in court.

Steps

Part 1

Hiring an Attorney

1

Decide whether having an attorney is the right choice for you. Hiring an attorney to help you prove adultery in court can be advantageous for a number of reasons, but it can also be a burden. Consider these factors in deciding whether hiring an attorney is the right choice for you:

Foregoing the help of an attorney may be advantageous if your spouse has openly admitted to cheating. In this situation, an attorney may only hinder your ability to talk honestly and openly with your spouse about all of the issues needing to be resolved. You should also be aware that if you do not have an attorney, you will be responsible for providing evidence to the court about your spouse's adulterous behavior.

If you do not have direct evidence of your spouse's infidelity and if you need help drafting and filing legal papers, then you should consider hiring an attorney. If your spouse is contesting your allegations, there may be a fight during divorce proceedings over children, property, and/or money. If this sounds like the divorce you might be going through, an attorney can help you craft legal arguments to ensure you get the fairest distribution of assets possible. An attorney will also be helpful when you do not have the time or expertise necessary to produce credible evidence.

2

Research possible attorney candidates. If you decide you would like to hire a lawyer, start by researching possible candidates. Follow the steps here to choose the right one.

First, start by asking friends, family, and coworkers for their referrals. A referral can be a great way to obtain a qualified attorney so long as you trust the opinion of the person giving you that referral. If your peers do not know any family law attorneys, look online by using lawyers.com, nolo, or findlaw.[1][2][3] All of these websites are great for searching out qualified lawyer candidates.

Second, once you have found a list of candidates, you should contact and set up an initial consultation with them. An initial consultation will help you get a feel for the attorney by meeting him or her in person and being able to ask them questions about themselves and about your case. Be prepared to pay a consultation fee. These often range from as low as $50 to as high as $500.

3

Choose an attorney that is right for you. Once you have met with your top candidates, you should follow-up with any of them you have more questions for. Once this process is complete, choose the attorney that you are most comfortable with. Look for an attorney with a fair fee, a good track record of handling family law cases, and a good reputation for honesty and integrity.

If you find out through your research and discussions that hiring an attorney will be too expensive for you, you can try finding an attorney that will take your case on a pro bono basis (taking on the work without charge). Try contacting your local or state bar association for help finding an attorney free of charge. In addition, there are many legal aid societies and nonprofits that may be able to assist you.

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Part 1 Quiz

How can you find a lawyer?

Search online.

Try again! There are several websites that help you search lawyers in your area and find a good candidate for your case. Try lawyers.com, nolo, or findlaw. Keep looking for an even better answer to finding a lawyer. Choose another answer!

Ask friends for recommendations.

You're partially right! Referrals are a great way to find a lawyer that you trust. If you have any friends who are divorced, ask if they hired a lawyer and whether they'd recommend him or her. There's an even better answer to finding a lawyer, so try again. Try again...

Contact your state bar association.

Close! This is an option if you can't afford a lawyer and need a recommendation for someone who will take your case pro bono. You could also try contacting a legal aid office. This isn't the best answer for how to find a lawyer, so keep looking. Try another answer...

All of the above

Yup! These are all options for finding a lawyer. A lawyer can help you prove that your spouse cheated on you and make sure you are well represented during the hearing. Read on for another quiz question.

Part 2

Proving Adultery

1

Know why you would want to prove adultery. Adultery is generally a valid ground for divorce.[4] Therefore, if you believe your spouse has been cheating on you and you want a divorce, you may need to prove adultery in order to finalize your legal proceedings. Also, in many states, if you are filing a no-fault divorce (meaning neither party is taking responsibility for the divorce), you will need to wait for up to one year before you can file divorce papers.[5] However, if you are filing for a fault-based divorce, which would include a divorce based on adultery, you will be able to file immediately.[6]

2

Understand the consequences of committing adultery. If your spouse commits adultery and you can prove it in court during divorce proceedings, some states will use the information when deciding issues of alimony and property division.[7] In some states, proving your spouse was adulterous will bar that spouse from collecting spousal support all together.[8]

3

Know what you need to prove. Proof of adultery is often hard to come by considering the act's nature of secrecy (i.e., you do not usually commit it out in the open for everyone to see).[9] Also, adultery does not necessarily mean that your spouse had sexual intercourse, it could also mean you were sexually intimate.[10] Therefore, most courts do not require proof of the adulterous act itself. Instead, most courts require you to prove:

First, that your spouse had a disposition to commit adultery.[11] A disposition is a tendency to act in a certain way.[12] In this case, it is a tendency to act in an adulterous manner.

Second, that your spouse had the opportunity to commit adultery.[13] An opportunity to commit adultery is showing that your spouse had the time and ability to commit adultery in any specific situation.[14]

4

Use direct evidence. If you have direct evidence, which can be eyewitness accounts or photographs of the adulterous act, then you should be able to prove adultery.[15] However, direct evidence is usually hard to come by because the spouse committing adultery is often keeping a low profile and cheating in private.[16]

In South Carolina, courts have recognized this difficulty and, like most states, do not require direct evidence in order to establish the charge.[17]

5

Use circumstantial evidence. In all likelihood, you will have to prove adultery by using circumstantial evidence, which means you will be using certain pieces of evidence to make implications.[18] Your indirect evidence should prove:

Your spouse had the chance to commit adultery, for example being alone with someone else; and

Your spouse had the disposition to commit adultery, which means that given the situation, adultery likely took place.[19]

6

Think about other possible reasonable explanations. When you get to court, if your spouse has a credible explanation for the acts you are alleging amount to adultery, a court may not side with you.[20] Therefore, before you file a fault-based divorce based on adultery, make sure your spouse does not have another reasonable explanation for the acts you believe amount to adultery.

7

Be careful not to condone the adulterous activities. If you take actions that can be perceived as condoning the adulterous activity, courts may not allow you to claim adultery as valid ground for divorce.[21] Also, if you and your spouse reconciled after you became aware of the adulterous activity, you may not be able to claim it as valid grounds for divorce.[22]

Condonation and/or reconciliation can be in the form of getting back together with your spouse or writing letters of forgiveness.[23]

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Part 2 Quiz

How would your divorce be affected if you wrote your cheating spouse a letter of forgiveness before filing for divorce?

The judge would be more likely to side with you during the hearing because you demonstrated compassion.

Nope! It's unlikely that this letter would improve your outcome in the divorce. Be wary of all communication to your spouse as you begin the divorce process, because anything could be shown to the judge. Guess again!

You might not be able to use adultery as the grounds for divorce.

Correct! If your spouse can prove that you condoned or forgave the adultery, then you might not be able to use it as grounds for your divorce. This includes getting back together with your spouse after catching them cheating, or going on record forgiving their behavior. Read on for another quiz question.

The letter would not affect your divorce at all.

Not exactly! This letter will probably affect the divorce hearing. You should tell your lawyer about the letter so they can prepare in case it's brought up in court. Guess again!

Part 3

Gathering Evidence

1

Look for letters, texts, or emails. Letters, texts, and emails can be a great way to prove your spouse had an inclination to commit adultery.[24] These things should have information about the adulterous activities your spouse is taking part in. For example, the text could discuss times your spouse was with someone else and a letter from someone else could say they love your spouse and enjoy the time they spend together. These letters should be romantic in nature.[25]

2

Try to find evidence of online dating. If you have proof that your spouse has signed up for online dating sites like Tinder, match.com, or any similar online resource, you should keep that evidence and present it to the court at the appropriate time.[26]

3

Hire a private investigator. If you cannot find evidence yourself but you think your spouse may be committing adultery, you could hire a private investigator to collect evidence for you.[27]

A private investigator will attempt to obtain photographs and other evidence of the adultery.[28]

4

Ask friends and family for information. In a lot of adulterous situations, friends and family will know something is going on before you do.[29] If you think something is going on, ask your friends and family. Be aware that while friends and family may know something is going on, they might not have any evidence to support their claims. While their information may still be helpful, it would be best if they had evidence to corroborate their claims.

5

Look for spousal admissions. If your spouse admits to having an affair or being adulterous, you can use that admission to help prove your case. Ideally, this admission would take the form of a text or email, because you will have tangible evidence of the conversation.

6

Subpoena records. If you are already taking part in court proceedings, you may be able to request bank records, online records, hotel records and other records that may provide proof of adultery.[30] You cannot subpoena records of a party to the divorce, so you should look to subpoena the records directly from a bank or hotel.[31]

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Part 3 Quiz

Which scenario is the best evidence of adultery?

Your sister says she saw your spouse on a date with someone else.

Not quite! Asking around family or friends can help you learn about your spouse's cheating, but it's more useful if they have real evidence to offer, like photos. See if you can use this information to find hard evidence. Click on another answer to find the right one...

Your spouse verbally apologized to you for cheating.

Almost! You can use spousal admissions of adultery in court, but it's not as solid if it was only verbal. It's better if you can get your spouse to admit to cheating over email or text. Pick another answer!

Absolutely! Online dating profiles are accepted as evidence of adultery in court. It's important to take photos in case your spouse deletes the profile before the hearing. Read on for another quiz question.

A private investigator took a photo of your spouse at a fancy restaurant with someone else.

Not necessarily! If you're having trouble finding evidence, hiring a private investigator can help. They'll need to provide photos that can't be explained away by your spouse, though. In this scenario, your spouse could claim that it was simply dinner with a client from work. Click on another answer to find the right one...

You subpoena hotel records that show your spouse booked a room for one night.

Close! If necessary, you can subpoena records from hotels or banks to provide adultery. Proving that your spouse booked a hotel room, especially if it was in your home city, proves there was an opportunity for cheating. However, you would also need to prove that your spouse had a disposition for cheating for this to be really solid evidence. Try again...

Part 4

Presenting Evidence in Court

1

Know the standard of proof. When you are in court, you will need to prove the adultery by a "preponderance of the evidence."[32] This is the type of evidence that tends to prove the matter you are asserting.[33] In general, this means that you must convince the judge that the adultery more likely than not took place (i.e., 51%).[34]

2

Understand that your spouse does not need to testify. In court, your spouse has the right to not incriminate herself, which means she may not have to testify in court.[35] Also, the court will not infer any bad behavior if your spouse chooses not to testify.[36] Therefore, do not rely on your spouse's potential testimony to prove a case of adultery.

3

Have people testify in court. If you have received help from friends, family, or private investigators, you will want them to testify in open court. When this happens, they will testify to what they themselves saw that made them believe that adultery was occurring.

4

Submit records into evidence. Apart from asking people to testify, you can also submit records into evidence. To do so, you will need to follow the rules of evidence in your state. If a piece of evidence is admissible, you will be able to show it to the judge and use it as proof of adultery.

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Part 4 Quiz

True or false: Your spouse is required to testify if your lawyer calls them to the stand.

True

Nope! Your spouse is not required to testify. Make sure to build a case that is strong enough without their testimony. Try again...

False

Nice! Your spouse does not have to testify in court. You'll need to provide enough evidence to prove adultery without their testimony. Read on for another quiz question.

Community Q&A

Can I use a recorded call from my own phone with her talking to her lover or somebody else about her affair?

Tom De Backer

Top Answerer

It's not easy, but it can help. If the judge allows it, and if your spouse admits it is her voice in the recording, then it would become a little stronger as evidence. If not, proving that it is indeed her voice may be difficult.

What if we're not married and I prove that he is cheating? What will I do, and what kind of case do I report to the court?

Community Answer

It is not illegal to cheat on a romantic partner, and there is nothing to go to court about here. The only reason you would ever need to prove to a court that someone is cheating on you is if you want to get divorced and want to use the cheating as grounds for divorce. Otherwise, if your romantic partner cheated on you, that's an unfortunate and painful thing, of course, but it is purely a personal matter and in no way a legal issue.

Can the other man in my wife's affair be subpoenaed and questioned in court to prove the affair occurred?

Tom De Backer

Top Answerer

If the court deems it necessary for this person to provide testimony, in person or on the phone, or to provide evidence, then yes, they can be subpoenaed. If an extramarital affair is illegal in your area, he can also not be forced to incriminate himself. There's all sorts of issues with your idea, but the main one is: this is between you and your wife, not between you and the other guy.

Article Info

This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013.